Elvine Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1942

43 N.L.R.B. 695 (N.L.R.B. 1942)

In the Matter 'of'ELVINE KNITTING' MILLS, -INC. and KNITOoODS' WORK-
ERS UNION;-LOCAL' 155, INTERNATIONAL LADIES' GARMENT WORRIERS
UNION, A. F'of L'.,' I
Case No. C-2191.-Decided August 27, 1942
Jurisdiction : knitted outerwear manufacturing industry.
Unfair Labor Practices.
Interference, Restraint, and Coercion:`anti-union statements; closing down plant
for purpose of addressing employees on the subject of union representation;
inquiry into union affiliation ; soliciting signatures to blank paper, which em-
ployees were, told -would indicate that they did not 'desire union' to represent
them, for purpose of combatting union's majority claim.
Company-Dominated Union: continued existence, after effective date of 'Act
without disapproval-of the employer of an organization which employer formed
and supported prior to effective date of -Act-support: permitting use of Com-
"pany's facilities for meetings and social functions ; use of, bulletin board priv-
ileges ; financial assistance,by purchase of substantial amount of tickets to
annual outing and Christmas parties-indicia : meaningless nature of contract ;
ineffectiveness and inactivity of organization as a bargaining agency.
Remedial Orders : disestablishment of dominated organization; contract with
dominated organization abrogated.
Mr. James C. Paradise, for the Board.
Mr. Elias Lieberman, by Mr. Benjamin Wyle, of New York City,
and Mr. Louis Nelson, of Brooklyn, N. Y., for the Union:
Mr. Herbert'Ka'ufman, of New York City, for the respondent.
Sweet & Sweet, by Mr. Iving Sweet and Mr: Samuel Sweet, of, New
York City, for the Association.
Mr: David Karasick, of, counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Knitgoods Workers Union, Local 155,
International Ladies' Garment Workers Union, American Federation
of Labor,,herein called the Union, the National Labor,Relations'Board,
herein called the Board, by the Regional Director for the Second
Region (New York^City), issued its complaint dated April' 16, 1942,
against Elvine Knitting Mills, Inc.; Brooklyn, New York, herein
43 N. L. R. B., No. 108.
695
696 DECISIONS OF NATIONAL LABOR RELATIONS` BOARD
called the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the,
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing, were duly
served upon the respondent and the Union, and upon Elvine Employees
Association, -herein called the Association,;a labor organization ,alleged.
in the complaint to have been, assisted, dominated, and supported by
the respondent. -
Concerning the unfair labor practices, the complaint alleged, -in
substance: (1) that the respondent on or about August 9, 1934,
sponsored and initiated the formation of the Association, and since
that date has continuously assisted-and dominated it, contributed
to its support, and interfered with its, administration; (2) that on. or
about August 10, 1934, the respondent entered into a collective bar-
gaining agreement with the -Association relating to terms, and con-
ditions of employment of its employees, which agreement has been
renewed from year to year and is now in full force and effect;' (3)
that. from May 1941 to the date of the complaint, the respondent
vilified, disparaged, and expressed disapproval of the Union; inter-
rogated its employees concerning their membership in the Union;
urged, persuaded, threatened, and warned its employees to refrain
from becoming or remaining members of the Union; and persuaded,
threatened, and warned its employees to assist the Association and
to become or remain members thereof. On April 24, 1941, the re-
spondent-filed an answer, admitting all the allegations of the com-
plaint as to its business, and admitting that it-did on or about
August 10, 1934, enter into a collective bargaining agreement with
,the Association as described in the complaint,, which agreement is
still in full- force, and effect, but- denying the,alleged unfair labor,
practices. On April 27, 1941, the Association filed an answer con-
taining the same denials as those set out in the answer of the
respondent, and alleging, by, way of affirmative defense, that the
Association was the freely chosen bargaining agency of the em-
ployees. I • '
Pursuant to notice, a hearing ,was held in Brooklyn, New York,
on April 30, and May 1 and 2, 1942, before R. N: Denham, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondent, the Union,' and the Association were represented by
counsel and participated in the hearing. Full opportunity was af-
forded all parties to'-be heard, to examine and cross-examine wit-
- nesses, and to introduce evidence bearing on the issues. At the
conclusion of the Board's case, a motion by counsel for the Board
to amend the complaint to conform to the proof as to names, dates,
ELVINE KNrrrING MTULS, INC. 697
and similar matters was granted without objection. The respondent
and the Association moved that the complaint be-dismissed for lack
6f proof and, in the alternative, that paragraphs 4 and 5 of, the
complaint be dismissed on the same ground.". ,The motions were ,
denied. At the conclusion - of the hearing, the motion by counsel
for the Board to amend the pleadings to conform to the proof was
again made 'and granted. The motions of the respondent and the
Association to dismiss the complaint for lack of proof were renewed
and were taken under advisement by the Trial Examiner, who subse-
quently denied them in-his Intermediate Report.
During the course of the hearing, the Trial Examiner made rulings
on various other motions and on the admissibility of evidence. The
Board has reviewed, the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed. The parties argued the issues orally before the Trial
Examiner after all the evidence had been received, but did not file
briefs with the Trial Examiner.
On May 7, 1942, after the close of the hearing, certain documents
pertaining to the financial record of the 1941 outing of the Associa-
tion were forwarded to the Trial Examiner by counsel for the
Association, with 'the request that they be received in evidence
pursuant to a stipulation entered into by the parties at the hearing.
Counsel for ,the Board, in a letter dated May 8, 1942, objected to
certain of the documents. These objections were overruled by the
Trial Examiner, and the documents, together with the letters from
counsel for the Association and for the Board, were collectively
received in evidence as Association's Exhibit' 1: The Trial Ex-
aminer's ruling is hereby affirmed.
On May 16, 1942, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon all the parties. The
Trial Examiner found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the
Act, and recommended that the respondent cease and desist from
such unfair labor practices and take certain affirmative action in order
to effectuate the policies of the Act. Thereafter, the respondent
and the Association each filed exceptions to the Intermediate Report
and a brief in support of such exceptions. Upon request of the
' In substance , paragraph 4 of the complaint alleged that the respondent on or about
August 9, 1934 , sponsored and initiated the formation of the Association , and since that
date has continuously assisted and dominated it, contributed to its support , and interfered
with its administration . Paragraph 5 of the complaint alleged, in substance , that from
May 1941 to the date of the complaint , the respondent vilified, disparaged, and expressed
disapproval of the Union ; interrogated its employees concerning their membership in the
Union ; urged , persuaded, threatened , and warned its employees to refrain from becoming
or remaining members of the Union ; and persuaded , threatened , and warned its employees
to assist the Association and to become or remain members thereof.
I
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent and the Association, and pursuant to notice duly served
upon the parties, a hearing for the purpose of oral argument was
held before the Board in Washington, D. C., on July 14, 1942. The
respondent, 'the Association, and the Union were represented by
counsel and participated in the argument.
The Board has considered, the-exceptions and briefs' filed and,-to
the extent that the exceptions are_ inconsistent with the findings of
fact, conclusions of law, and order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
. THE BUSINESS OF THE RESPONDENT
The respondent was incorporated in 1930 under ' the laws of the
State of'New York, and has its office and principal place of business
in Brooklyn, New York, where it is engaged in the manufacture and
sale of knitted outerwear. Its raw material consists primarily of
wool, of which its purchases during the year ending 'April 30, 1942,
amounted to approximately $350,000. Of the wool thus purchased,
60 percent was obtained from sources outside the State of New York.
During the same period, sales of finished products totaled approxi-
mately $500,000, of which approximately 20 percent was shipped
to points outside the State of New York. The respondent concedes
that it is engaged'in commerce, within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Knitgoods Workers Union, Local 155, International Ladies' Gar-
ment Workers4Union, is'a labor organization affiliated with the Ameri-
can Federation of Labor, and Elvine Employees Association is an
unaffiliated labor organization. Both admit to membership employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference with, domination, and support of the Association
In September 1933, many of the employees at the respondent's
,plant were members of an unaffiliated textile workers'-labor organi-
zation and participated in a general strike called by that union. All
the male employees and four of the female employees joined the
strikers and picketed the respondent's plant. While the strike was
in progress, the respondent entered into a contract with the American
Federation of Labor, which had initiated an organizational, campaign
among the non-striking employees. As' a result, the strike was broken-
ELVINE KNITTING MILLS, INC. 699
and the striking employees applied for ,'reinstatement. All the
strikers were reinstated, after the respondent's attempt to reject some
of them had been protested by Walter Granov, a striking employee.
The employees in-the plant then became members of the American
Federation of Labor, and Granov was elected shop chairman. 'After
a short time, interest,im that union dwindled- and practically, all the
employees fell in arrears in the payment of dues. Upon request of
the leaders of the American Federation of Labor, Herman' Yanowitz,
the president of the respondent, authorized them to call a meeting
of the employees in the plant'in an effort to revive their interest.
The meeting was unsuccessful, and within a few weeks the American
Federation of Labor disappeared entirely from the plant.
At the close of the meeting, Granov spoke to the employees present
and informed them that they could have a union of their own. This
meeting occurred in or shortly after September 1933, but it was
not until August 1934 that Granov, together with some of the other
employees, formed the Association. Rose Girsch, head bookkeeper
and secretary to Yanowitz, the president-of the respondent,-retained
the services of an attorney to draft a constitution and bylaws and to
launch the organization in an appropriate manner. The organiza-
tional meeting was held on August 9, 1934, in'"the respondent's plant,
and was attended by a large number of 'the employees, who signed
the constitution and bylaws adopted at that meeting. At the same
meeting, a letter to the respondent was approved, announcing the'
organization of the Association as the employees' bargaining repre-
sentative and' naming a bargaining committee of which- Madeline
Vogel (now Madeline Frey) was a member. On the following day,
August 10, the respondent replied to this letter, recognizing the
Association as the collective bargaining representative of the em-
ployees 'and stating its willingness to meet with the committee at any
time. On the same day, another committee, headed by Granov, met
with Yanowitz and agreed to the retention of the 40-hour work week
and the wage rates then in force, and also agreed that there would
be no strikes or lock-outs. Except to the extent that the exchange
of letters on August 9 and 10, 1934, may constitute a contract between
the Association, and the respondent, no written' contract exists.
There is, however, in existence an oral agreement or understanding
between the_ Association and the respondent that 40 hours shall con-
stitute a standard work week and that work shall be equitably dis-
tributed among-the employees during slack seasons. There does not
appear to be any agreement as to wages or rates of pay.
Upon the formation of the Association in 1934, Granov was chosen
president ; Rose Girsch, the respondent's head bookkeeper and sec-
retary to Yanowitz, the respondent's president, was chosen recording
secretary; Madeline Vogel (now Madeline Frey), then head folder
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and examiner, was chosen financial secretary; Molly Angelerie, then
general forelady of the factory, was one of five persons designated to
serve,on the welfare committee; and Carl Schuster, then in charge
of the link-and-link machines, was appointed, to the board of gov-
ernors and was also designated a member of the welfare committee.
The Trial Examiner found that Walter Granov, Madeline Frey,
Daniel Etlin, Margaret Berner, Sylvia Stillman, and Sol Rossakow 2
are supervisory employees who actively participated in the affairs of
the Association. The respondent and the "Association have excepted
toy the finding as to the supervisory status of each of these employees,
and contend that all the employees work under the supervision of
Yanowitz, the respondent's president, and Rubin, its secretary and
general manager, and no one else. This contention must be con-
sidered in the light of the fact, that the respondent employs some
120 to 150 persons. Yanowitz testified that the production of the
1 espondent is only one-third that of other companies employing an
equal number of persons and that such companies operate approxi-
mately 30 weeks a year,'while the respondent maintains operations
for 45 'or 50 weeks a year. I
Granov was first employed by the respondent in 1931 or 1932 as a
knitter and machine maintenance man, at a salary of $40 per week.
In 1934 or 1936, the respondent obtained a number of new machines.
Since then, Granov has not worked as a knitter and has 'been in ex-
clusive charge of the power-driven machines in the plant. At the
time the respondent obtained its new machines in 1934 - or 1936,
Granov's salary was increased to $50, and at the time of the hearing
he was receiving $75 per week. Granov and Straus, who was described
by Yanowitz as a designer, creator, and part-time salesman, are the
highest paid employees in the plant. The next highest paid em-
ployee is Madeline Frey, who receives $45 per week. Although both
Yanowitz and Granov testified, in substance, that Granov is re-
sponsible only for the mechanical operation of the machines, Yano-
witz nevertheless admitted that Granov is in charge of the knitters
and tells them what to make, what machines to set up, and, if Yano-
witz and Rubin, the respondent's secretary and general manager, are
not, in the plant, when to work overtime; that, when new knitters
are hired, Granov watches them to see that they work properly and,
if they do not, informs Yanowitz ; that Granov is consulted by
Yanowitz with respect to the lay-off of knitters ; and that Granov
neither punches a time clock nor gets paid for working overtime, as
'.do the other employees. That the employees regard Granov as a
representative of management 3 is illustrated by the fact that Hyman
2 Variously designated in the record and briefs as "Rusakoff," "Russakow" and
"Russakov."
See International Association of Machinists v. N. L. R. B., 311 U. S. 72.
ELVINE KNrITING MILLS , INC. - 701
Landy, who has worked for the respondent as a presser for 8 or 9
years, testified as follows: -
I can only say I, as a worker, like all the other workers, know
that Granov and Madeline [Frey] are the head of the shop or,
the first man to the boss. I mean, they take' orders from 'them,
and they take care of the shop.
We find, as did- the Trial Examiner, that Walter Granov is a super-
visory employee. We further fine that, since 1934 or 1936, when the
respondent installed additional machines, Granov has acted in a
supervisory capacity and has been identified with management.-
Madeline Frey (formerly Madeline Vogel) was first employed by
the respondent in 1922 or 1923 as a finisher, at a salary of about $10
per week. In 1934, she was head folder or examiner and received
a salary of $30 per week, while the other folders or examiners re-
ceived $22 per week. - In August 1938, Frey became forelady of the
plant at a salary of'$40 per week, which was increased about 6 months
prior to the hearing herein to $45. With the exception of Granov and
Straus, as noted above, Frey is the highest paid, employee in the plant.
Although Frey denied that she is a forelady, Yanowitz admitted that
,she has that title and that she is the only employee in the plant who
is so characterized. Although both Yanowitz and Frey denied gen-
erally that Frey is a supervisory employee, their testimony shows,
and we find, that Frey 'is in complete charge of the operators, tells
them on what orders to work and when to work overtime, reports
operators who are not working properly to either Yanowitz or Rubin,
and is consulted with respect to salary increases or lay-offs of the
operators. She does not punch a time clock and is not paid for
overtime work. We find, as did they Trial Examiner, that Madeline
Frey is a supervisory employee, and that she has exercised super-
visory authority since August 1938 4
Molly Angelerie, who preceded' Frey as forelady in the plant, was
discharged sometime prior to August 1938, after employees had com-
plained'of discrimination on her part in the assignment of work. An
employee named Fless 5 took Angelerie's place when she was dis-
charged, and was in turn succeeded by Frey in August 1938. While
the Trial Examiner made no specific finding with respect to the
supervisory status of Angelerie, he did find that Frey was a super-
visor and that she succeeded to the position' formerly occupied by
Angelerie. We find that Molly Angelerie, prior to her discharge,
was a supervisory employee.
* The record also shows that Daniel Etlin, head presser, Margaret Berner, head fin-
isher, Sylvia Stillman , head folder, and Sol Rossakow , head of the winding department,
have' some of the indicia of, supervisory employees , but we do not deem it necessary
to our decision to determine their status.
5 Referred to in the Intermediate Report as "Press."
702 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD'
The Trial Examiner made no finding with respect to Carl Schuster,
who had been in charge of the 24 link-and-link machines 'at the plant
for about 15 years until he left the respondent's employment in 1938.
Yanowiti, the respondent's president, testified that Schuster received
a. salary of $45 per week, which was $8 or $10 higher than the salary
.paid to anyone else in the department; that he was not consulted in
the hire, lay-off, or discharge of employees in the department; that
he assigned work to the operators and was responsible for the proper
performance of the work; and that, if an 'employee did, not perform
his work, properly, Schuster would report to Yanowitz, who would
follow his recommendations. Granov testified that at one time he
presented a grievance to the respondent with respect to alleged dis-
crimination by Schuster in the assignment of work and in lay-offs.
Granov also testified that the respondent employed a father and son
both of whom were named Carl Schuster, and that the names of both
appear in the minute book of the Association. The minutes in ques-
tion, however, list only two persons having that surname, one of
whom is', shown to be "Carl" and the other "Charles." 6 From the
foregoing facts, it is clear and we find that Carl Schuster was a
supervisory employee.
Granov was president of the Association from its inception in
August 1934 to the end of 1939, served as a member of a committee
which considered and rejected a proposal to affiliate with an outside
labor organization in May 1941, is one of the three members who
were elected to the grievance committee established in June 1941, and
was, at the time of the hearing, the only member'of the contract
committee appointed in' August 1941, the remaining two members
have recently left the employment of the respondent.
Madeline Frey was financial secretary from the time the Associa-
tion was formed in, August 1934 until December 1938 and was elected
a member of the grievance committee in June 1941, but resigned from
that position in August of 1941 because of her position as forelady.7
She did not, however, resign as a member of the Association. During
the time that Frey was financial secretary, it was her custom to col-
lect dues in the plant during the lunch hour.
Molly Angelierie was appointed by Granov 8' to serve upon the
welfare committee of the Association-9 and Carl Schuster was simi-
° As no above, in August 1934, Carl Schuster was appointed by Granov to serve both
upon the board of governors and as a member of the welfare committee of the Association.
Granov at the same time also appointed Charles Schuster a member of the entertainment
committee . On April 21, 1936 , Charles Schuster ' was elected vice president of the
Association.
° As heretofore appears, Frey had been a forelady since August 1938.
8 The constitution and bylaws of the Association provide that the president shall appoint,
and shall act as ex -officio member of, all committees. .
° No change in the membership of any of the committees appointed by Granov is shown
in the minutes of the Association.
ELVINE KNITTING MTLLS, INC. 703
larly appointed to serve upon both the board of governors 10 and the
welfare committee of the Association.
The Association 's membership dues are 10 cents per week.1' Meet-
ings of the Association were held in the respondent 's plant from
November 19, 1937 until May 27, 1941. Notices of the meetings
were posted in the plant . Yanowitz testified that the use of the
plant for meetings was. accorded . the Association at its request in
order to save it the expense of hiring an outside meeting place.
Yanowitz also permitted the Association to hold its Christmas parties
in the plant , and he testified that he did so for the -same reason that
he permitted it to hold its meetings on the respondent 's premises.
We find, as did the Trial Examiner , that the respondent, by permit-
ting the Association to hold its meetings in the plant , contributed
support to the Association .12 , We further find that the respondent
contributed support to the Association by permitting it to hold its
Christmas parties in the plant.l3
Since 1935, the Association has annually held an outing or, picnic
which the families , relatives, and friends of members of 'the ssocia-
tion were invited to attend, upon the purchase of tickets . 14 Yanowitz,
the respondent 's president , has purchased large amounts of these tickets
each year ' since 1937 . The purchases of outing tickets by Yanowitz-
amounted to $75 in each of the years 1937, 193,9, and 1940 , $50 in 1938,,
1,nd $129 in 1941'. The Trial Examiner found, and the respondent
and,the Association except tothe finding;that the respondent ,, through
the purchases of outing tickets by Yanowitz , contributed to the sup-
10 The board of governors originally provided for in the constitution and bylaws of the
Association was composed of the elected officers and nine non-officer members of the Asso-
ciation appointed by the president The non -officer members were eliminated from the board
of governors on April 21 , 1936 , at Granov ' s suggestion.
ii Cf Titan Metal Mfg Co , et al v N. L. R . B , 106 F. ( 2d) 254.
>a Both the respondent and the Association have excepted to this finding of the Trial
Examiner , and in "their respective briefs contend that use of company premises for Asso-
ciation meetings cannot be regarded as favoritism or support on the part of the respondent
because the A. F. of L. was also permitted to hold meetings in the plant . We find this -
contention to be without merit for the following reasons: ( 1)'the privilege of meeting
on company property was granted to the previous A F. of L organization in or about
September 1933 , before the passage of the Act and before the formation of the Asso-
ciation , but the privilege of holding such meetings was never accorded the Union during
the time the privilege was enjoyed by the Association; (2) the previous A F,. of L.
,organization was permitted to hold only one meeting in the plant approximately 4 years
before the Association began to meet on company premises ; (3) the record shows that
the meeting in the plant held by the previous A F. of L. organization constituted assistance
to it by the respondent shortly after the respondent had entered into a contract with that
organization which broke a strike of the respondent 's employees called by an unaffiliated
industrial union ; and ( 4) Yanowitz admitted that the Association's request to hold
meetings in the plant was granted for the very purpose of saving it the expense of hiring
an outside meeting place -
rs As noted below , the respondent also lent prestige and assistance, to the Association
by purchasing tickets of admission to Chirstmas pasties for employees who were not
members of the Association
i Tickets for children were priced at $1 ; those for relatives at $2 or $2 25 ; and those
for fiiends of outsiders at $3 or $3 25. 1
704 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
port of the Association. Although Yanowitz regularly attended the
outings of the Association, there is no evidence of the exact number
of tickets used by -him on each occasion., It was customary for Yano-
witz to make payments by check some 4'or 5 months after the outings--.
were held. The amounts received by the Association from ticket sales
to Yanowitz constituted approximately 10 percent of the total annual
income of the Association in 1937, 1939, and 1940, 6 percent in 1938,
and over 16 percent in 1941. - Moreover, ticket sales to Yanowitz were
in amounts ranging from approximately one-third to more than one-
half of the, total sales of tickets, and, with the exception of the outing
held in 1941, spelled the difference between profit and loss to the Asso-
ciation for each outing.15 The largest sum received by the Association
from Yanowitz was in 1941, after the Union had requested recognition
and had filed charges with the Board. Moreover, the Association,
itself, considered the sums received from Yanowitz as "donations,"
for they are so characterized in the Association's minutes for 1938 and
1939. From the foregoing facts and upon the basis of the entire record,
we are convinced and we find, as did the Trial Examiner, that the
respondent, through the purchase of tickets to Association outings by -
Yanowitz, contributed support to the Association."'
In 1940 and 1941, the Association charged non-member employees
50 cents as an admission fee for the Christmas party given in the plant
in each of those years. Yanowitz paid the fees for non-members in
each of those years, which cane to $10 or $12 in 1941 and an undis-
closed amount in 1940. Thus, of'the 120 to 150 peisons employed by
the respondent, Yanowitz in 1941 purchased tickets for 20 to 24 of them
who were not members of the Association, and thereby further con-
tributed support and assistance to the Association.
Furthermore, although events which occurred prior to the effective
date of the Act on July 5, 1935, were not unfair labor practices, the fact
that the respondent granted the Association recognition immediately
upon its formation in 1934 and thereafter treated it with obvious favor
is relevant in determining the meaning and effect of the respondent's
conduct subsequent thereto. 1-7 This course of conduct is to be con-
18 The exact figures are as follows :
Year-------- ---------------------------------- 1937 1938 1939 1940 1941
Total ticket sales ___ ___________________________ ' $188 25 ' $161 00 $109 00 $174 75 $273 35
Sales of tickets to Yanowitz------------------- 75 00 50 00 75 00 75.00 129 00
Total net profit to the Association _____________ 2 77 one 11 43 .27 180 05
I Of this amount , $56 represents income received from members of the Association, who, in 1937,
were charged $1.00 if they attended the outmg , and,50 cents if they did not.
19 Matter of New " York Merchandise Company, Inc . and United Wholesale and Warehouse
Employees of N. Y., Local 6$, affiliated with the United Retail and Wholesale Employees of
America, C I 0, 41 N. L R B 1078.
17 N. L. if. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261.
ELVINE KNITTING MILLS, INC. 705,
trasted-with the respondent 's behavior , noted below , when presented
with the Union 's request for recognition , and is indicative of the fact
that 'the respondent accepted and encouraged organization of its em-
ployees only so long as the manner in which they organized met with
its approval and did not involve outside affiliation. The reason for
the respondent's acceptance and encouragement of the Association be-
comes evident upon an examination of the activities and effectiveness of
that organization.
As stated above, the oral agreement which was entered into on
the day following the formation of the Association recognized only
existing working conditions. This agreement was never modified or
formally renewed between 1934 and the date of the hearing. The
meaning and importance of the agreement to the respondent and the,
Association may be judged from the fact that Yanowitz at the hearing
did not remember that it had not been reduced to written form, and.
from the fact that it was never put in writing despite a notation in
the minutes of the Association for August 10, 1934, -that " . the'
president [Granov] was authorized to consent to this [the, agreement]
in writing on behalf of the association if Cllr. Yanowitz wantedlsahne
for his, records." (Emphasis supplied).
Moreover, the minutes of the Association, which cover approxi-
mately 30 meetings in 8 years, show that it functioned primarily as'
a social organization whose 'lain concern was the arrangement ' of,
parties and raffles. 'The minutes contain little, if' any, reference to
matters which constitute the normal functions and interests ,of legiti-
mate labor organizations, at least until the Union appeared at the
plant. Only after the Union had requested recognition and had filed
charges calling into question the lawful status of the Association were
grievance and contract committees established and departmental rep-
resentatives selected by the Association. That even these activities
of the Association were mere matters of form, rather ,than of sub-
stance, is illustrated by the fact that the committee which was formed
early in August 1941 for the purpose of drafting a contract had not
yet done so at the time of the hearing herein at the end, of April
1942, and by the further fact that only one grievance was presented to
the respondent by the newly formed grievance committee during ap-
proximately the same period of time. Even that grievance was han-
dled by Granov alone, rather than by the committee of which he was
a member. Neither in connection with that grievance nor previously,
when grievances were also 'apparently handled primarily by Granov;
was the membership-at large consulted, only the individuals, involved
being informed of the results.
We are convinced by the record that the Association is not the
result of the self-organizational efforts of the respondent 's employees
451039-24-vol 43-45
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that it was never freely designated by them as their collective
bargaining representative. The participation in Association affairs
by supervisory employees Granov, Frey, Angelerie, and Schuster, the
dominant part played in it by Granov, the meetings and Christmas
parties held in the respondent's plant by the Association, the contri-
butions made to the Association by, the respondent's purchases of
tickets to the annual outings and Christmas parties, the meaningless
r natlire of the "contract" between the Association and the respondent,
the ineffectiveness and inactivity of the Association as a bargaining
agency, and the respondent's contrasting treatment,of the Association
and the Union all make it clear that the Association was completely
dominated by the respondent and that its existence depended upon
and was due to the respondent's continued support.
We find, as did the Trial Examiner, that the respondent, after the
effective date of the Act, has dominated and interfered with the
administration of the Association and has contributed financial and
other support to it, and that it has thereby interfered with, restrained,
and coerced,its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. Interference, restraint, and. coercion
On May 21, 1941, the respondent received a letter from the Union
stating that the Union represented a majority of its employees and
requesting that arrangements be made to initiate bargaining negoti-
ations. Thirty minutes before quitting time on May 21, Yanowitz had
all the machinery stopped and assembled the employees in the plant
t near the office, where he read the communication he had just received
from the Union and made some comments on the Union's current effoi is
to organize the employees. He stated to the assembled employees that
he did not care what organization they affiliated themselves with, but
that he did not believe the Union represented a majority of them, and
he asked them to advise him whether the statement of the Union was
true.
The Trial Examiner found that no statements disparaging the
Union were made by Yanowitz. However, Dave-Kirschbaum, who had
worked for the respondent until the middle of January 1942, testified
that at'the meeting of May 21, 1941, Yanowitz told the employees that
lie was being stabbed in the back; 18 that he did not have to remain in
that business and that he could go into some other kind of business;
and that the employees then had security, but that, if the Union came
.into the plant, they possibly would not have it. The foregoing testi-
mony of Kirschbaum was corroborated in part by Hyman Landy, a
- In recounting what had occurred during the meeting of May 21, 1941 , counsel for
the respondent , in his presentation of oral argument before the Board, admitted that such
a rei iai k had been made by Yanowitz.
ELVINE KNITTING MILLS, IINC. 707
witness for the Board,'who testified that Yanowitz had said that he,
"could get along without the business incase we signed up" and that he
also had said something about "stabbing in the back." Frank Donnell,
a witness for the respondent, denied that Yanowitz had stated that it
might be. difficult for him to remain in business under a union contract.
Sol Rossakow, a witness for the respondent, in effect testified that
Yanowitz' did nothing more than ask the employees whether or not the
Union's claim of majority representation was true, but he did not
specifically deny the testimony of Kirschbaum stated above. Yano-
witz had testified to the same effect as Rossal'ow prior to the time
Kirschbaum took the stand, but he was recalled by the respondent
thereafter and did not then deny the statements attributed to him by
Kirschbaum. We find that Yanowitz made the remarks above noted
as testified by Kirschbaum.
When Yanowitz concluded his statement, he called on the employees
for comment. Several of them questioned the Union's claim' that it
represented•a majority of the employees, and Granov went to consid-
erable lengths to criticize the Union and to explain to those present
that the American Federation of Labor had been in the plant at one
time, that it had accomplished nothing for the employees, and that he
was opposed to the Union because of its affiliation with the American
Federation of Labor. Granov testified at the hearing that, had the.
Union been affiliated with the C. I. 0., he would not have'opposed it;
and that his opposition grew out of bitterness for the A. F. of L. en-
gendered in 1933. While the comments of those present were being
made, someone had the respondent's bookkeepers, who are not members
of the Association; bring sheets of paper from the office' which they im
mediately circulated ,.among the employees present with the explana-
tion that a signature would indicate-that the employees so signing did
not want to be represented by the Union. Yanowitz and Rubin,both
remained on, the floor while these signatures were being obtained.
Practically every employee present signed. After the meeting had
ended, Rubin remarked to a group of the employees.who'had remained
and were ,discussing the matter that he did not know -what the re-
spondent would do with the signatures, but that they would probably
be sent to the Union to indicate the falsity of its claim to representation
of a majority.
' We find that, by,.Yanovitz's closing down the factory and addressing
the employees on the subject of union representation, by his inquiry,
into the union affiliation of the employees, by his and Granov's state-
ments in 'opposition to the Union, and by Rubin's comments with
reference to the ultimate disposition of the-list of signatures secured
in the presence of himself and Yanowitz, the respondent interfered
with, restrained; and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occur-
ring in connection with the operations of the respondent described in
Section I above,' have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and tend to lead
to labor disputes'burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
We have found that the respondent has dominated and interfered
with'the administration of the Association and has contributed finan-
cial and other support to it. In order to effectuate the policies of the
Act and free the employees of the respondent from such domination
and interference and the effects thereof, we shall order the respondent
to withdraw all recognition from and to disestablish the Association as
the representative of any of its employees for the purposes of collective'
bargaining. We shall also order that the respondent cease and'desist
from giving effect to its contract with the Association, or any exten-
sion, renewal, modification, or supplement thereof,,or any supersed-,
ing contract which may now be in force. Nothing in this Decision and
Order, however, shall be taken to require the respondent to vary or
abandon the wage rates or other substantive features of its relations
with its employees established in performance of such contract, 'or
any extension, renewal, modification, or supplement thereof, or in per-
formance of any superseding contract which may now be in effect.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the -following :
CONCLUSIONS OF LAW
1. Knitgoods Workers Union, Local 155, International Ladies' Gar-
ment Workers Union, affiliated with the American Federation of
Labor, and Elvine Employees Association are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the administration of Elvine
Employees Association, and by contributing financial and other sup-
port thereto, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,,
within the meaning of Section 8 (1) of the Act.
ELVINE KNITTING MILLS , WC. 709
. 4. The aforesaid unfair labor practices are unfair - labor practices
affecting commerce , within- the meaning 'of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondent, Elvine Knitting Mills, Inc., Brooklyn, 'New York, and
its officers , agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Elvine
Employees Association or with the ' formation or administration of
any other labor organization of its employees ,' or contributing
financial or other support to Elvine ' Employees Association or to any
other labor organization of its employees;
(b)- Recognizing Elvine Employees Association as the representa-
tive of any of its employees for the purpose of dealing with the re-
spondent concerning grievances , labor disputes, rates of pay ; wages,
hours of employment, or other conditions of employment;
(c) Giving effect to or performing its' contract with Elvine Em-
ployees Association or any extension , renewal , modification, or sup-
plement thereof , or any superseding contract with the Association,
relating to rates of pay, wages , hours of employment, or other con-
ditions of employment;
(d) In any other manner interfering with, restraining , or coerc-
ing its employees in the exercise of the right to self-organization, to
form, join , or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or'protection , as guaranteed in Section 7 of the Act.
2. Take the followilig - affirmative action, which the board finds
will effectuate the policies of the,Act :
(a) Withdraw all recognition from Elvine Employees Association
as the representative of any of its employees for the purpose of
dealing with the respondent concerning grievances , labor disputes,
wages, rates of pay, hours of employment , or other conditions of em-
ployment , and completely disestablish Elvine Employees Association
as such representative.
°(b) Post immediately in conspicuous places throughout its plant
in Brooklyn , New York, and maintain , for a period of at least sixty
(60) consecutive days from the date of posting, notices to its-em-
ployees stating that the respondent will not engage , in the conduct
from which it is ordered to cease and desist in , paragraphs 1 (a),
,710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b), (c),-and ( d)' _of this Order, and that the respondent will take
the affirmative action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Second Region in writ-
ing within ten (10) days from the date of this Order what steps the'_
respondent has taken to comply herewith.
,MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.